Considered and decided by Dietzen, Presiding Judge; Randall,
Judge; and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Relator
employer challenges the decision by the unemployment law judge (ULJ) that
respondent employee was not disqualified from unemployment benefits because he
had been discharged for poor performance and not for employment misconduct. Relator argues that the ULJ (a) ignored evidence
of the employee’s repeated refusal to complete his job duties and follow his
supervisor’s instructions, and (b) ignored settled law that once an employer
makes a reasonable request, the employee’s failure to follow it constitutes
employment misconduct. The evidence and
testimony supports the ULJ’s conclusion that the employee was discharged for
reasons other than employment misconduct.
We affirm.

FACTS

Relator
Cherne Industries, Inc. manufactures plumbing and underground testing and
repair equipment. In March 2005, relator
hired respondent Mark Muellner as a lead person for the second shift in
relator’s Repetitive Division. As the
lead person, Muellner’s duties included working in the production line,
supervising employees, and making sure that the production goals were met. He was also responsible for quality control
inspections, correcting errors, and writing reports in regard to production,
employee issues, and quality control issues.

During
his employment with relator, Muellner had four performance reviews. These reviews praised Muellner for learning
many new things in a short amount of time and complimented him for catching
quality errors. The reviews also
acknowledged that Muellner’s quality of work product was “fine.” But the reviews emphasized that Muellner was
having problems keeping the second shift on schedule and that Muellner’s
attainment numbers needed to be higher.
The reviews further emphasized that Muellner was having problems learning
and completing all of the tasks assigned to him.

In
mid-March, Muellner’s direct supervisor Heather Schenian worked on the second
shift to observe Muellner’s performance.
On March 13, 2006, Muellner did not report for work due to inclimate
weather. That night, Muellner’s shift
completed its work schedule long before the end of the shift. Schenian found this to be evidence that
Muellner’s presence must be the reason that the second shift was not efficient
on other days. Schenian also claimed that
she was told by second-shift employees that Muellner spent a lot of time
working at his computer, and that they did not know that Muellner was supposed
to work with them during their shift.

On
March 20, 2006, Muellner was given a warning stating that there was a history
of “productivity concerns, lack of schedule attainment, and work assignments
not carried out” during the second shift.
The warning cited four “incidents” that led to the warning, two of which
were good performance by second shift on nights when Muellner called in sick or
was absent due to the weather. The other
two involved a task that had not been completed, and Schenian’s observation
that tasks in general took Muellner too long to complete. The warning said that Muellner was being “put
on notice that he is expected to maintain the same productivity, efficiency,
and attainment that was achieved” during the week Schenian worked on second
shift.

Muellner
responded by submitting a two-page response to the warning. Muellner blamed his failure to meet
expectations on having additional job duties, having to complete performance
reviews, and not having resources available to complete his non-direct labor
tasks. As a possible solution to the
problems, Muellner requested that he be allowed to start work 15 minutes
earlier and stay 15 minutes later each day in order to prepare for his shift
and brief the supervisor of the next shift.
This request was denied.

Because
Muellner’s performance did not improve, relator hired an independent
investigator to observe Muellner for a two-week period. After the two-week period, the investigator
reported that Muellner:

·Spent an average of only 60% of his time doing
direct labor work. Requirement is
85%. (Muellner’s non-direct labor time
was spent sitting at his desk and leaving the work area for unknown
destinations for periods of time.)

·Delegated training duties of the observer to
another hourly associate in the department.
When the observer asked who to go to if he had questions, Muellner told
him to “ask anyone.”

·Committed a safety violation by sitting on a
rolling cart.

·Repeatedly moved a desk chair into the work area
and sat down while performing direct labor tasks. (Associates are not permitted to sit while
they perform their job duties.)

·Was observed leaving the building before the
break bell sounded to smoke. Was
observed already outside on break when the break bell rang. Muellner had been warned about this on
previous occasions.

·Failed to enforce the manufacturing dress code,
allowing the associate to leave his shi[rt] untucked the entire first week
(safety issue).

As a result of the report, relator terminated Muellner’s
employment.

Following
his termination, Muellner established a benefit account with the Minnesota
Department of Employment and Economic Development (department). A department adjudicator initially determined
that Muellner was discharged from employment for reasons other than employment
misconduct and was not disqualified from receiving benefits. Relator appealed that determination. Following a de novo hearing, a department
unemployment law judge (ULJ) affirmed the initial determination. Relator sought reconsideration of the ULJ’s
decision, but the ULJ issued an order affirming the initial determination. This certiorari appeal followed.

D E C I S I O N

Relator argues that the ULJ erred in
concluding that Muellner was not discharged because of employment
misconduct. This court may affirm,
remand, reverse, or modify the ULJ’s decision “if the substantial rights of the
petitioner may have been prejudiced because the findings, inferences,
conclusion, or decision are,” “affected by . . . error of law [or] . . .
unsupported by substantial evidence in view of the entire record as submitted .
. . .” Minn. Stat. § 268.105, subd.
7(d)(4), (5) (Supp. 2005).

Whether an employee has engaged in
conduct disqualifying her from unemployment benefits is a mixed question of
fact and law. Schmidgall v. FilmTec
Corp., 644 N.W.2d 801, 804
(Minn. 2002). The question of whether an
employee actually engaged in acts, actions, or a pattern of conduct are
questions of fact. Scheunemann v.
Radisson S. Hotel, 562
N.W.2d 32, 34 (Minn. App. 1997). But
whether those actions constitute employment misconduct is a question of law,
which this court reviews de novo. Id.

An
applicant who is discharged from employment is disqualified from benefits only
if the conduct for which the applicant was discharged amounts to employment
misconduct. Minn. Stat. § 268.095, subd.
4 (Supp. 2005). Minnesota
law defines “employment misconduct” as:

[A]ny intentional,
negligent, or indifferent conduct, on the job or off the job (1) that displays
clearly a serious violation of the standards of behavior the employer has the
right to reasonably expect of the employee, or (2) that displays clearly a substantial
lack of concern for the employment.

Inefficiency, inadvertence, simple
unsatisfactory conduct, a single incident that does not have a significant
adverse impact on the employer, conduct an average reasonable employee would
have engaged in under the circumstances, poor performance because of inability
or incapacity, good faith errors in judgment if judgment was required, or
absence because of illness or injury with proper notice to the employer, are
not employment misconduct.

Relator argues that the ULJ’s
decision is erroneous because the ULJ ignored evidence of Muellner’s repeated
refusal to complete his job duties and to follow his supervisor’s instructions. We disagree.
The ULJ found that “Muellner was discharged mainly because he did not
meet [relator’s] goals and expectations in regard to efficiency and attainment
percentages.” The record supports this
conclusion. Muellner received four
employee reviews while he was employed by relator. These reviews provided employees with
feedback regarding performance of their employment duties. The reviews acknowledged that Muellner was
doing well in certain areas, but also informed Muellner that he needed to
improve in other areas. Although
Muellner apparently failed to improve his performance in the areas cited in
some of the reviews, this conduct, standing alone, does not constitute employment
misconduct. Seeid., subd. 6(a)
(stating that “simple unsatisfactory conduct” and “poor performance because of
inability or incapacity” does not constitute employment misconduct).

Relator argues that the ULJ’s
decision “misses the point” because Muellner was terminated for “not perform[ing]
his job,” not for doing “a poor job.” The
record reflects that Muellner communicated to his employer that he believed the
time he was given to perform the required tasks was inadequate. Relator’s position that Muellner was “not performing
his job,” may have been attributable to Muellner’s inability to do the
job. As the department points out, to
show employment misconduct, relator must demonstrate that Muellner was actually
capable of performing his employment duties, that he had a history of
performing his duties, and that later Muellner’s job performance declined. The
ULJ concluded that relator failed to meet its burden. The ULJ found, based on Muellner’s testimony,
that Muellner “sometimes did not meet the goals because of a shortage of parts
or supplies. Sometimes employees called
in sick or took time off.” The ULJ found
that Muellner regularly sent emails to his supervisor when there were questions
about production or other issues, indicating that Muellner was “doing his best
to meet [relator’s] expectations.” The
ULJ further noted that “Muellner credibly testified that he did his best.” It is settled that appellate review defers to
a ULJ’s determinations regarding witness credibility and conflicting
evidence. SeeSkarhus v. Davanni’s Inc., 721 N.W.2d 340, 344 (Minn. App. 2006) (deferring to
ULJ’s determinations regarding witness credibility
and conflicting evidence); see alsoWhitehead
v. Moonlight Nursing Care, Inc.,
529 N.W.2d 350, 352 (Minn. App. 1995) (stating that this court defers to the
decision-maker’s ability to weigh the evidence, and that “we may not weigh . .
. evidence on review”). The evidence and
testimony support the conclusion that Muellner was discharged for reasons other
than employment misconduct. The ULJ properly
concluded that Muellner was entitled to receive unemployment benefits.

Finally, relator cites a litany of
cases claiming that the ULJ’s decision ignores settled law. Specifically, relator argues that the ULJ’s
decision conflicts with cases holding that once an employer makes a reasonable
request, the employer may reasonably expect the employee to follow that
request. See, e.g., McGowan v. Executive Express Transp. Enters., Inc., 420
N.W.2d 592, 596 (Minn. 1988) (holding that employee’s deliberate, calculated
and intentional refusal to follow the employer’s reasonable order constituted
misconduct). Relator correctly states
the law, but misapplies the law to the facts.
Muellner’s failure to meet relator’s performance expectations does not
mean he was “refusing” to meet the expectations. Rather, Muellner may have been
unable to meet relator’s expectations, a conclusion that would not amount to
employment misconduct. As noted above,
the ULJ found that Muellner credibly testified that he was “doing his best” to
meet relator’s expectations. Muellner’s
conduct does not amount to employment misconduct.